President Donald Trump smiles during a meeting with Chilean president Sebastian Pinera, in the Oval Office of the White House, Friday, Sept. 28, 2018, in Washington. (AP Photo/Alex Brandon)

I posted yesterday on the decision by the White House to instruct former White House Counsel Don McGahn to refuse to produce documents in his possession which were included in the Mueller report (see Former White House Counsel Declines to Respond to Jerry Nadler’s Subpoena). This drama was playing out in the context of a subpoena to Attorney General Bill Barr for the entire and unredacted Mueller report and the threat of a contempt of Congress citation when Barr declined to comply (see Joe Cunningham’s BREAKING: Democrats To Hold Barr In Contempt). Just a short while ago, the White House upped the ante by invoking executive privilege over the entire Mueller report.

President Donald Trump has invoked executive privilege to block an effort by House Democrats to access special counsel Robert Mueller’s unredacted report and underlying evidence.

…

“Regrettably, you have made this assertion necessary by your insistence upon scheduling a premature contempt vote,” Assistant Attorney General Stephen Boyd wrote in a letter to House Judiciary Committee Chairman Jerry Nadler.

President Trump has asserted executive privilege over the Mueller report.

Read the Justice Department's letter to the House Judiciary Committee chairman: https://t.co/HMsQYKlkla pic.twitter.com/pQj5f0zM7w

— CNN Politics (@CNNPolitics) May 8, 2019

https://twitter.com/kevincorke/status/1126130249798959110

This has the effect of making a vote of contempt of Congress nothing more than a political act as Barr no longer has the authority to comply with the subpoena. It also puts more pressure on the House Democrats to either sh** or go blind:

House Judiciary Chairman Jerry Nadler on executive privilege: "This decision represents a clear escalation in the Trump administration's blanket defiance of Congress' constitutionally mandated duties."
Via CSPAN pic.twitter.com/fVS67EUWai

— Kyle Griffin (@kylegriffin1) May 8, 2019

Rep. Jackson Lee criticizes Pres. Trump’s use of executive privilege over release of full Mueller report: “I can only conclude that the president now seeks to take a wrecking ball to the Constitution of the United States of America.” https://t.co/Inl0Qt6i7w pic.twitter.com/NZ7UZKv5x2

— ABC News (@ABC) May 8, 2019

Executive privilege can’t be used to hide illegal conduct. The President and his lawyers know that.

This is a desperate attempt to rewrite the rules, continue stonewalling Congress, and try to hide the President’s unethical conduct from the American people.

It won’t work. https://t.co/w9IiOqZwmA

— Adam Schiff (@RepAdamSchiff) May 7, 2019

Executive privilege won’t cover all 36 document requests, is subject to waiver, and can’t justify McGahn’s no-show: as a private citizen he can’t pretend to be under 45’s control. Finally, an impeachment inquiry’s need for evidence trumps privilege. https://t.co/tve3cVHS7b

— Laurence Tribe (@tribelaw) May 7, 2019

As I noted last night, the way in which the White House shared the documents with Mueller was in his role as a temp employee at Justice, so there is a very good chance this claim will prevail in the current environment. The special counsel statute makes it clear that the special counsel’s report is to the Attorney General and with that there is an implication that it doesn’t have to be shared. If the Democrats really want the entire report they have an easy way to get it: impeachment. Nixon-era court decisions basically invalidated executive privilege for an impeachment proceeding, but no one thinks the Democrats really want to go there.